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2023 PA Super 103

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN R. AUMICK

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1529 EDA 2020

Appeal from the Judgment of Sentence Entered July 13, 2020

In the Court of Common Pleas of Pike County Criminal Division at No(s): CP

- 52

- CR

- 0000184

- 2019

BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,

J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN,

J.

OPINION BY SULLIVAN, J.: FILED JUNE 12, 2023

John R. A umick (“Aumick”) appeal s from the judgment of sentence

imp osed following the entry of his negot iated guilty plea to corruption of

minors

. 1 Specifically, Aumick challenges the trial court’s determination that

he is a sexually violent predator (“SVP”) subject to lifetime registration

requirements pursuant to the Sex Offender Registration and Notific ation Act

(“SORNA II ”), 42 Pa.C.S.A. § 9799.10 et seq . We affirm

.

The relevant factual and procedural history of this matter is as follows.

In November 2017

, Ashley Whit t en discovered that her stepfather

, Aumick

,

had repeatedly sexually abused her daughter, P.M

. One month later

, Molly

Carson, a forensic interviewer for child abuse cases, conducted a videotaped

_________________ __________ ______ ____ _______

1 See 18 Pa.C.S.A. § 6301 (a) (1)(ii)

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forensic interview of P.M. at a child advocacy center. During the interview,

P.M. , then fourteen years o ld, stated that Aumick had raped her when she was

six years old , ca u sing her to experience soreness and resulting in blood on her

underwear. P.M. also state d that, a few weeks later, Aumick began touching

her vagina and then digitally penetrated her vagina with his finger . P.M.

explained that she asked Aumick to stop, but he refused to do so. P.M. told

the interviewer that Aumick did this to her on multiple occasions , but she

stopped him b efore he penetrated her on subsequent occasions

. P.M. f urther

described several more instances of sexual abuse by her step

- grandfather

,

including exposing his penis to her

, making sexually inappropriate comments,

watching her when she went to the bathroom

, and on multiple occasions

,

grab bing and touch ing her buttocks

. P.M. indicated that Aumick stopped

touching her when she was eight or n i ne years old

.

Police charged Aumick with seventeen sexual offenses, including

, inter

alia

, rape of a child

, statutory sexual assault, aggravated indecent assault

,

sexual assault, and corruption of minors. A preliminary hearing was

conducted on March 19, 2019 , at which the Commonwealth presented the

testimony of Ms. Carson, who authenticated the video recording of the forensic

interview of P.M. regarding her sexual abuse by Aumick. In addition to the

video , t he Commonwealth presented the te stimony of Chief Detective Michael

Jones, who explained that the sexual abuse occurred at two locations within

Pike County. The detective stated that he interviewed Aumick and that, duringJ

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the interview, Aumick told him that he had sexual intercourse with his

stepdaughter

, Ms

. Whit t en, and that she performed oral sex on him. 2 At the

conclusion of the preliminary hearing

, the magistrate court held a ll charges

over for trial.

On January 18, 2020, following written and oral plea colloquies, Aumick

entered a negotiated guilty plea to corruption of minors , a felony of the third

degree and a Tier I offense which require d him to be evaluated by the Sexual

Offender Assessment Board (“SOAB”) for classification as a n SVP

. See 42

Pa.C.S.A. § 9799. 24 (a) (providing that “a court shall order an individual

convicted of a sexually violent offense to b e assessed by the board”) ; see

als o id . § 9799.14 (classifying corruption of minors as a Tier I sexual offense)

.

In his written plea colloquy, Aumick agreed that “[b]etween June 2009

through December 2015, [he] engaged in a course of corruption against his

grandchild, P.M., ([born in 2003]), which included sexual touching of her

private areas . This occurred at two residences in Pike County, Lehman

Township, Pennsylvania.” Written Plea Colloquy, 1/8/20 , at 4 ; see also N.T.,

1/8/20, at 4

- 5 (wherein Aumick confirmed at the plea hearing that the factual

_________________ __________ ______ ____ _______

2 Ms. Whitten confirme d that she performed oral sex on Aumick in April 2017,

but also told investigators that Aumick ha d sexually assaulted her when she

was growing up

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basis for his guilty plea w as accurately set forth in the written plea colloquy). 3

Pursuant to the negotiated plea agreement , the Commonwealth dismissed the

remaining sixteen charges against Aumick . The trial court then ordered a

presentence investigation report and scheduled the matter for a sentencing

hearing

. The court also ordered a SOAB assessment in accordance with

sect ion 9799. 24 (a)

.

Prior to the hearing, a S OAB investigator conducted an investigatio n

regarding Aumick and prepared a report. Based on the SOAB investigator’s

report and case

- related documents

, Mary Muscari, Ph.D., a SOAB member,

conducted an assessment of Aumick

. Dr

. Muscari determined that Aumick

should be classified as an SVP and prepared a report regarding her conclusion.

Based on Dr. Muscari’s assessment, the Commonwealth requested that the

trial court conduct a hearing to determine whet her Aumick should be classified

as an SVP. See 42 Pa.C.S.A. § 9799. 24 (e) (1).

O n July 13, 2020, the trial court conducted a hearing to determine

whether Aumick should be classified as a n SVP and to impose sentence

. At

_________________ __________ ______ ____ _______

3 Inexplicably, Aumick insists throughout his appell ate brief that he only admitted to touching P.M.’s buttocks. See Aumick’s Brief at 9, 11, 13, 16,

and 20 . However, this is simply not true. Aumick was accused of sexually touching both P.M.’s vagina and buttocks on multiple occasions, and he admitted in his written plea colloquy to “ sexual touching of her private

areas ” at two different residences. Written Plea Colloquy, 1/8/20, at 4 (emphasis adde d). We consider the “private areas” of a female to include both the vagina and buttocks. Thus, we reject Aumick’s attempts to minimize the conduct to which he admitted in connection with his guilty plea.J

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the hearing, t he Commonwealth presented the expert testimony and report of

Dr. Muscari, who was qualified by the trial court as an expert in the field of

sexual offender assessment without objection

. See N.T., 7/13/20. at 6. Dr.

Muscari testified that she did not cond uct an in

- person interview with Aumick ;

h owever, she explained that a majority of SVP assessments are completed

without an interview

. Id . at 8. Dr. Muscari noted that she has completed

between 600 and 700 SVP assessments for SOAB over the past fifteen years.

Id . at 5. She further explained that , in conducting such assessments, she

reviews the materials provided through t he courts, including police reports,

child protective reports, and testimony

. Id . at 7. Dr. Muscari indicated that,

in assessing Aumick, she reviewed

, inter alia

, the affidavit of probable cause,

criminal information, criminal complaint, preliminary hearing transcript, and

investigative report s prepared by Child Protective Services. Id . at 9; see also

Exhibit 1 , 2/28/20, at 1. Dr. M uscari explained that she assess ed Aumick

based on the statutory factors and concluded to a reasonable degree of

professional certainty that Aumick should be classified as an SVP

. Id . at 9

,

18

. Dr. Muscari referenced Aumick’s antisocial behavior

, as reflected in his

prior criminal history

, which includes convictions for homicide by vehicle and

burglary. Id . at 11. Dr. Muscari discussed her opinion that Aumick suffers

from a p edophilic d isorder

. Id . at 12

- 15. Dr. Muscari further opined that

Aumick ’ s sexual offense was the result of a mental defect or personality

disorder which made him more likely to reoffend. Id . at 15

- 17

. Dr. MuscariJ

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additionally noted the particular vulnerability of the v ictim

, her relationship to

Aumick

, and the repeated nature of the sexual abuse. Id

. Dr. Muscari

explained that, even though Aumick has experienced incarceration , Aumick’s

“ condition overrode his emotional

, volitional control so he could not control

his impulses to sexually abuse [ P.M. ] ” despite her considerable protestations.

Id . at 16. Dr. Muscari opined that “ Aumick is following a sexually deviant

pat tern and he acted up on it by committing the index off ense

. ” Id

. Dr.

Muscari’s assessment and report were entered into evidence without

objection. Id . at 18. 4

_________________ __________ ______ ____ _______

4 The learned dissent insists that Dr. Muscari’s assessment was based solely on the allegations to which Aumick did not plead guilty. See Dissenting Opinion, at 6. However, this assertion is belied by the record. At the SVP hearing, Dr. Muscari answered in the affirmative when she was asked, “did

you evaluate any factors with regard to the current offense for which [Aumick] has been convicted by his Plea?” N.T., 7/13/20, at 9 ; see also id . at 20, 21 (wherein Dr. Muscari repeatedly agreed that A u mick pleaded guilty to corruption of minors based on his repeatedly touching P.M. in a sexually inappropriate manner ). Moreover, i n her opinion, Dr. Muscari indicated that she had reviewed the affidavit of probable cause which detailed, inter alia

, P.M.’s accusations that Aumick “started touching her vagina wit h his fingers

. . . [and] had done this multiple times to her . . ..” Exhibit 1, 2/28/20,

at 2. Dr. Muscari further indicated in her expert report that, pursuant to the affidavit, P.M. stated that Aumick “would grab and touch her butt, [and that]

this to ok place multiple times.” Id . In making her SVP assessment, Dr. Muscari specifically indicated that her opinion was based o n “ [h]er having

reviewed all of the records available, having considered all of the factors specified under Pennsylvania law, and having considered the current and

credible sex offender research . . ..” Id . at 9 (emphasis added). Thus, it is

clear that Dr. Muscari’s assessment included her consid eration of the accusations to which Aumick confessed ( i.e ., sexually touching P.M.’s private

areas on multiple occasions).J

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Aumick’s counsel cross

- examined Dr. Muscari regarding her

assessment. In particular, defense counsel questioned Dr. Muscari regarding

her consideration of all of P.M.’s allegations of sexual abuse rather than the

limited factual basis for Aumick’s plea of guilt for corruption of minors. Aumick

presented no evidence at the hearing. At the conclu sion of the SVP hearing,

the trial court determined that the Commonwealth had met its burden of

proving by clear and convincing evidence that Aumick should be classified as

an SVP subject to lifetime reporting requirements under SORNA II

. Id . at 31

,

34

.

The trial court then conducted a sentencing hearing at which P.M.

testified regarding the trauma she has suffered due to Aumick’s sexual abuse

,

resulting in her suicide attempts . At the conclusion of the sentencing hearing,

the trial court imposed a sentence of eighteen months to five years in prison

for corruption of minors

. Aumick filed a post

- sentence motion for

reconsideration which the trial court denied. Aumick then file d a timely notice

of appeal

, and both he and the trial court complied with Pa.R.A.P. 1925.

Aumick raises the following issues for our review:

A. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION BY FINDING THAT AUMICK WAS [AN SVP] BASED

ON ALLEGED INC IDENTS TO WHICH HE DID NOT PLEAD

GUILTY NOR OF WHICH HE WAS CONVICTED.

B. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION BY FINDING THAT AUMICK WAS [AN SVP] BASED

ENTIRELY ON HEARSAY IN THE FORM OF THE STATEMENTS OF

THE ALLEGED VICTIM WHO NEVER TESTIFIED AT ANY

PROCEEDING.J

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Aumick’s Brief at 7 (capitalization in original). 5

In both of his issues, Aumick challenges his SVP designation. A

challenge to a trial court ’ s SVP designation presents a challenge to the

sufficiency of the evidence for whic h our standard of review is de novo and

our scope of review is plenary

. See Commonwealth v. Meals

, 912 A.2d

213, 218 (Pa. 2006 ). 6 A challenge to the sufficiency of the evidence to support

an SVP designation requires the reviewing court to accept the undiminished

record of the case in the light most favorable to the Commonwealth. Id

. The

reviewing court must examine all of the Commonwealth ’ s evidence without

consideration of its admissibility. See Commonwealth v. Baker

, 24 A.3d

_________________ __________ ______ ____ _______

5 Aumick’s issues, as presented in his statement of questions involved, purport

to raise claims of trial court error or abuse of di scretion. However, in the

discussion section of his brief, Aumick does not explain how the trial court

erred or abused its discretion

. Instead, Aumick focuses entirely on the basis

for Dr. Muscari’s opinion

. Specifically, he challenges the information t hat Dr. Muscari was permitted to consider when conducting her assessment as to whether Aumick should be classified as an SVP. As explained above, t he trial

court ’ s inquiry at an SVP hearing is different from the SOAB ’ s assessment. Thus, a claim of trial court error or abuse of discretion involves an entirely

different inquiry than a challenge to a SOAB assessment. Pursuant to our Rules of Appellate Procedure, “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby”). Aumick did not raise any issue in the statement of questions involved specifically relating to Dr. Muscari’s assessment

. While we could find waiver

of both of Aumick’s issues on this basis, we decline to do so.

6 Although the Meals Court addressed a prior version of t he SVP statute, see
42 Pa.C.S.A. § 9795.4 (repealed)

, i t remains instructive in our review of a trial

court ’ s SVP determination under present law. See

, e .g. , Commonwealth v. Woeber , 174 A.3d 1096, 1105

- 06 (Pa. Super. 2017) (relying on Meals for

the applicable scope and standard of review of an SVP designation ).J

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1006, 1035 (Pa. Super. 2011). A successful sufficiency challenge can lead to

an outright grant of relief such as a reversal of the SVP designation, whereas

a challenge to the admissibility of the expert’s opinion and testimony is an

evi dentiary question which, if successful, can lead to a new SVP hearing.

Commonwealth v. Sanford

, 863 A.2d 428, 431 (Pa. 2004) (distinguishing

concepts of sufficiency of evidence versus admissibility of evidence

, but

refusing to render any opinion on whethe r SVP expert’s “reliance on the

affidavit of probable cause and the charging documents somehow rendered

her testimony inadmissible [,] as this issue is not before this court”). “ We will

reverse a trial court ’ s determination of SVP status only if the Commonwealth

has not presented clear and convincing evidence that each element of the

statute has been satisfied. ” Baker

, 24 A.3d at 1033.

The procedure for determining SVP status is statutorily mandated and

well

- defined. See Commonwealth v. Dixon

, 907 A.2d 533, 535 (Pa. Super.

2006). Under r evised Subchapter H of SORNA

, 7 after a person has been

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7 SORNA has been amended several times. SORNA I was originally enacted on December 20, 2011, effective December 20, 2012

, s ee Act of December 20, 2011, P.L. 446, No. 111, § 12, effective in one year or December 20, 2012 (Act 11 of 2011). Act 11 was amended on July 5, 2012, also effective December 20, 2012, see Act of July 5, 2012, P.L. 880, No. 91, effective December 20, 2012 ( Act 91 of 2012), and amended on February 21, 2018, effective immediately, known as Act 10 of 2018, see Act of February 21, 2018, P.L. 27, No. 10, §§ 1

- 20, effective February 21, 2018 ( “ Act 10 ” of 2018), and, lastly, reenacted and amended on June 12, 2018, P.L. 140, No. 29, §§ 1

- 23, effective June 12, 2018 ( “ Act 29 ” of 2018). Through Act 10, as amended in Act 29 (collectively, SORNA II ), the General Assembly split SORNA I ’ s former
(Footnote Continued Next Page)J

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convicted of an offense listed in section 9799. 14

, the trial court orders an

assessment by the SOAB. See 42 Pa.C.S.A. § 9799. 24 (a). The SOAB must

assess all individuals convicted of sexually violent offenses to determine

whether they should be classified as an SVP

. See id

. § 9799. 24 (b). When

assessing whether a particular offender should be classified as an SVP

, “the

board shall establish standards for evaluations and for evaluators conducting

the assessment s .” Id

.

A SOAB board member conducts the assessment to determine if the

individual should be classified as an SVP. See id

. To aid this function, “[a] ll

State, county and local agencies, offices and entities in this

_________________ __________ ______ ____ _______

Subchapter H into a r evised Subchapter H and Subchapter I

. Subchapter I applies to sexual offenders who committed an offense on or after April 22, 1996 but before December 20, 2012 , whose period of registration has not expired, or whose registration requirements under a former sexual offender registration law have not expired

. See 42 Pa.C.S.A. §§ 9799.51

- 9799.75.

Revised Subchapter H applies to offenders who committed an offense on or after December 20, 2012 (the date SORNA I became effective)

. See 42 Pa.C.S.A. §§ 9799.10

- 9799.42. Both r evised Subchapter H and Subchapter I require an individual who has been designated as an SVP to register for life.

See 42 Pa.C.S.A. §§ 9799.15(d), 9799.55(b)(3). In the instant matter, P.M.

indicated that Aumick sexually abused her from the time she was six years old until she was eight or nine years old. As P.M. was born in 2003, her allegations suggest that the sexual o ffenses in question were committed

between 2009 and 2012 , thereby implicating Subchapter I

. However, as explaine d above, Aumick pleaded guilty to sexual offenses committed “[b]etween June 2009 through December 2015 . . ..” Written Plea Colloquy, 1/8/20, at 4. Thus, Aumick was convicted of offenses committed both before and after December 20, 2012, thus straddling the boundary between r evised Subchapter H and Subchapter I. Nonetheless, t he trial court classified Aumick

as an SVP under r evised Subchapter H , which contains more stringent reporting requirements than Subchapter I

. As Aumick has not challenged that

classification

, we need not address it.J

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Commonwealth

. . . shall cooperate by providing copies of records and

information as requested by the board in connection with the court

- ordered

assessment .” Id . § 9799.24(c).

An assessment shall include, but not be limited to, an
examination of the following :

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims.

(ii) Whether the individual exceeded the means necessary

to achieve the offense.

(iii) The nature of the sexual contact with the victim.

(iv) Relationship of the individual to the victim.

(v) Age of the victim.

(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the

crime.

(vii) The mental capacity of the victim.

(2) Pri or offense history, including:

(i) The individual's prior criminal record.

(ii) Whether the individual completed any prior sentences.

(iii) Whether the individual participated in available programs for sexual offenders.

(3) Characteristics of the individual, including:

(i) Age of the individual.

(ii) Use of illegal drugs by the individual.J

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- (iii) A mental illness, mental disability or mental abnormality.

(iv) Behavioral characteristics that contribute to the

individual's conduct.

(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense.

Id . § 9799. 24 (b)(1)

- (4)

. After completing its assessment , the SOAB member

must prepare and submit a written report to the district attorney, who may

file a praecipe for a hearing on the matter. See i d

. § 9799. 24 (d), (e)(1).

A SOAB expert opinion falls within the general rules regarding expert

witnesses

. See Commonwealth v. Prendes

, 97 A.3d 337, 3 60 (Pa. Super

2014)

, overruled sub silentio on other grounds by Commonwealth v.

Hvizda , 116 A.3d 1103, 1106 (Pa. 2015). In this regard , Pa.R.E. 702

provides :

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert ’ s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b) the expert ’ s scientific, technical, or other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

(c) the expert ’ s methodology is generally accepted in the

relevant field.

Pa.R.E

. 702

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Rule 703 identifies the facts and data upon which an expert may base

his or her opinion:

An expert may base an opinion on facts or data in the case

tha t the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted

.

Pa.R.E. 703

.

Further, “[i]f the expert states an opinion the expert must state the facts

or data on which the opinion is based.” Pa.R.E. 705; see also i d

. C m t

.

(explaining that otherwise inadmissible facts and data supporting an expert

opinion are conside red only to explain basis for expert’s opinion, not as

substantive evidence).

The trial court ’ s inquiry at an SVP hearing is different from the SOAB ’ s

assessment. Whereas the SOAB member must consider the fifteen factors

listed in section 9799. 24 (b), the trial court must determine whether the

Commonwealth has proven by clear and convincing evidence that the

defendant is a n individual who has “ a mental abnormality or personality

disorder that makes the individual likely to engage in predatory sexually

violent offenses .” 42 Pa. C.S.A. § 9799. 12 ( providing the definition of a

“sexually violent predator”) ; see also Commonwealth v. Butler

, 226 A.3d

972, 992 (Pa. 2020) (stating, an SVP

, in addition to having been convicted of

a sexually violent offense, is a person “ who [has] been individually determinedJ

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to suffer from a mental abnormality or personality disorder such that they are

highly likely to continue to commit sex ually violent offenses ” ).

“An SVP assessment is not a trial or a separate criminal proceeding that

subjects the defendant to additional punishment.” Prendes

, 97 A.3d at 35 8

( citing Commonwealth v. Howe

, 842 A.2d 436, 445

- 46 (Pa. Super. 2004)).

“SVP status, therefore, does not require proof beyond a reasonable doubt;

[rather,] the court decides SVP status upon a show of clear and convincing

evidence that the offender is, in fact, an SVP.” Id . ( citing Co mmonwealth

v. Killinger

, 888 A.2d 592, 600 (Pa. 2005)).

In both of his issues, Aumick challenges Dr. Muscari’s opinion to the

extent that she was permitted to consider allegations made by P.M. to which

he did not plead guilty when assessing whether he met the criteria to be

classified as an SVP

. A s these issues are interrelated, we will address the m

together.

In his first issue

, Aumick argues that his guilty plea was limited to the

offense of c orruption of m inors and further limited by his admission to sexual

touching of P.M.’s private areas

. 8 Aumick takes issue with the fact that Dr.

_________________ __________ ______ ____ _______

8 As explained previously, Aumick attempts to minimize the extent of the

conduct to which he admitted in connection with his guilty plea by repeatedly

insist ing that he merely admitted to s exually touching P.M.’s buttocks. See Aumick’s Brief at 9, 11, 13, 16, and 20. Our review of the record , however,

reveals otherwise. Aumick agreed at his plea hearing that “[b]etween June 2009 through December 2015, [he] engaged in a course of corruption against his grandchild, P.M. . . . which included sexual touching of her private
(Footnote Continued Next Page)J

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Muscari based her assessment on the allegations contained in the police

report, including P.M.’s claims that Aumick penetrat ed her vagina with his

penis, digitally penetrated her vagina, touched her vagina on several

occasions, expose d his penis to her

, watched her when she went to the

bathroom, grabbed and touched her buttocks on multiple occasions

, and made

sexual comments to her. Aumick contends that, because he did not confess

or plead guilty to any conduct other than touching P.M.’s private area , Dr.

Muscari’s conclusion that Aumick suffers from pedophilic disorder is based on

unproven and unadmitted accusations. Aumick points out that his criminal

record contains no other arrests or convictions for sexual offenses. Aumick

asserts that “ it in [sic] entirely inappropriate for an individual to be held liable

in a court of la w during a sentencing procee ding based on a series of facts to

which he did not p le ad.” Aumick’s Brief at 16. Although Aumick concedes

that he was aware of and accepted that SORNA registration was a

consequence of his plea , he nevertheless contends that SORNA registration

must be b ased on the offenses committed, not the victim’s allegations.

_________________ __________ ______ ____ _______

areas .” See Written Plea Colloquy, 1/8/20, at 4 (emphasis added)

. Notably

, P.M. accused Aumick of to uching her vagina on multiple occasions and grabbing and touching her buttocks on multiple occasions. See Exhibit 1, 2/28/20 , at 2

. Thus, contrary to Aumick’s assertions otherwise, his plea was not limited to merely sexually touching P.M.’s buttocks on m ultiple occasions

and can be considered to also include his sexual touching of P.M.’s vagina on multiple occasions

.J

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In his second issue, Aumick challenges Dr. Muscari’s opinion to the

extent that she did not examine P.M., and instead relied on information

provided by the Commonwealth. Aumick argues that “Dr . Muscari based her

opinion entirely on material outside of the facts of the case by reviewing

unproven and untested accusations to which no admission had been made.”

Aumick’s Brief at 18. Aumick claims that because P.M. never testified in this

case , her accusations against him were never tried or tested in any

appropriate forum and constitute hearsay

. 9 Aumick argues that Ms. Whitten

had cause to be biased against him and has strong influence and control over

P.M

. Aumick contends that Dr. Muscari base d her opinion on allegations of

actual sexual conduct over a period of years which he denied

. According to

_________________ __________ ______ ____ _______

9 H earsay is defined as a statement that :

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter

asserted in the statement

.

Pa.R.E. 801(c). Although Aumick did not specifically use the word “hearsay”

in his post

- sentence motion, he did challenge Dr. Muscari’s reliance on “allegation s of sexual cont act beyond what [A umick] confessed to and what

he was sentenced fo r , and that “ [t]he opinion of the SOAB expe r t was
therefore based entirely on untried allegations to which [Aumick ] never

admitted.” Motion to Reconsider Sentence, 7/21/20, at 1

- 2

. Thus, as all of

the documentation relied on by Dr. Muscari included hearsay statements, we deem his hearsay objection to be preserved.J

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Aumick, Dr. Muscari ’s opinion and conclusions were based on unknowable and

unprovable materials. 10

Initially, we observe that the offe nse of corruption of minors to which

Aumick pleaded guilty is

, without more, sufficient to trigger an SVP

assessment and provide a basis to support an SVP classification where the

Commonwealth’s evidence, including the SOAB assessment, demonstrates

that the person convicted of a sexually violent offense has a mental

abnormality or disorder rendering that person more likely to engage in

predatory sexually violent offenses. See Commo nwealth v. F eucht , 955

A.2d 377, 381 (Pa. Super. 2008) ; see also 42 Pa.C.S.A. § 9799. 24 (a)

(providing that “a court shall order an individual convicted of a sexually violent

_________________ __________ ______ ____ _______

10 In the argument section of his brief, Aumick attempts to raise additional

issues for o u r review ; namely, that Dr. Muscari’s consideration of P.M.’s unproven allegations constitutes a breach of his plea agreement as well as a violation of the confrontation clause. However, these claim s w ere not raised

in Aumick’s statement of questions presented

. See Pa.R.A.P. 21 16 (providing

that “[n]o question will be considered unless it is stated in the statement of questions presented or is fairly suggested thereb y ”). Moreover, Aumick did

not raise these issues in either his post

- sentence motion or in his Rule 1925(b)

concis e statement. See Pa.R.A.P. 302 (a) (providing that “[i]ssues not raised

in the lower court are waived and cannot be raised for the first time on appeal”) ; see also Pa.R.A.P. 1925 (b) (4)(vii) (providing that issue s not raised

i n the concise statement are waived). Although Aumick raised a hearsay

violation

, the concepts of hearsay and confrontation clause violations are d istinguishable. See Commonwealth v. Chmiel

, 738 A.2d 406, 420 (Pa. 1999). Therefore, as Aumick failed to preserve these additional issues for our

review , we decline to address them

.J

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- 18

-

offense to be assessed by the board”); id . § 9799.14 (classifying corruption

of minors as a Tier I sexual offense).

Moreover, to the extent that Dr. Muscari considere d P.M.’s other

accusations and information contained in documents provided by the

Commonwealth 11 in making her assessment, this Court has previously

determined that she was permitted to do so. In Prendes

, we addressed a

similar challenge where the appellant argued that the record did not support

his SVP classification because the trial court ’ s SVP determination was based

on a SOAB member’s expert testimony that was founded on hearsay and

unproven allegations contained in police reports, the affidavit of probable

cause, polygraph examination reports, and other documents of record

. The

Prendes Court ruled that

, in making her SVP assessment, the SOAB member

was permitted to consider those documents because she testified that such

records are typically relied on in SOAB evaluations. See Prendes , 97 A.3d at

362 ; see also Pa.R.E. 703, 705. T h e Prendes Court explained:

The statute governing the SVP assessment does not limit

the expert ’ s consideration of information only to that admitted at

trial or at the guilty plea proceedings. In fact, the statute requires state, county, and local agencies, offices or entities to provide copies of records and information as requested by the SOAB in connection with an SVP assessment, without limitation

_________________ __________ ______ ____ _______

11 In her expert report, Dr. Muscari indicated that she reviewed the following documents: the SOAB investigator’s report; the trial court order for an SVP
assessment; the criminal information; the criminal complaint; the affidavit of probable cause; the D istrict Attorney’s CID; the preliminary hearing transcript; the ba i l report; and the Child Protective Services reports. See Exhibit 1, 2/28/20 , at 1.J

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-

on the “ admissibility ” of that information. See 42 Pa.C.S.A. § 9799.24(c). As a result, it stands to reason that some if not many of the facts necessary to perform the SVP assessment might not have been proven beyond a reasonable doubt. Thus, we hold an SOAB expert opinion falls within the general rules regarding expert witnesse s. As such, a SOAB expert ’ s opinion may be based on facts or data that the expert has been made aware of or personally observed so long as experts in the particular field reasonably rely on those kinds of facts or data in forming an opinion on the subject ; the facts or data consulted need not be admissible for the expert ’ s opinion to be admitted. See Pa.R.E. 702, 703

. . . The SOAB expert must state the facts or data on which the opinion is based. See Pa.R.E. 705 and Comment (explaining otherwise inadm issible facts and data supporting
expert opinion are considered only to explain the basis for an expert ’ s opinion, not as substantive evidence). Then, the rules of

evidence place the full burden of exploration of facts and assumptions underlying the testi mony of an expert witness squarely on the shoulders of opposing counsel ’ s cross

examination.

. . . Opposing counsel bears the burden of exposing

and exploring any weaknesses in the underpinnings of the expert ’ s opinion.

Id

. at 360

- 61 (some citations omitted

, emphasis added ). 12

Based on the reasoning expressed in Prendes

, w e conclude that Dr.

Muscari was permitted to consider the affidavit of probable cause, criminal

information, criminal complaint, preliminary hearing transcript, and the

investigative reports prepared by Child Protective Services when assessing

Aumick

. See Prendes , 97 A.3d at 360

- 61; see also 42 Pa.C.S.A.

§ 9799 .24(c); Pa.R.E. 702

, 703 , 705

. Pursuant to revised Subchapter H

, t he

SOAB must undertake a comprehensive assessment of a defendant convicted

_________________ __________ ______ ____ _______

12 Aumick concede s that, pursuant to Prendes

, “an expert’s decision can be

based on otherwise inadmissible materials in a SORNA assessment.” Aumick’s

Brief at 18.J

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- 20

-

of a sexually violent offense by considering the fifteen factors set forth in

section 9799. 24 (b)(1)

- (4)

. See id . § 9799. 24 (b)(1)

- (4)

. S ection 9799.24(c)

expressly requires that “[a]ll State, county and local agencies, offices and

entities in this Commonwealth, including juvenile prob ation officers, shall

cooperate by providing copies of records and information as

requested by the board in connection with the court

- ordered

assessment . . ..” 42 Pa. C.S.A. § 9799

. 24(c) (emphasis added)

. Moreover,

within ninety days of a defendant’s qualifying conviction, the SOAB must

prepare a written report regarding its assessment which includes

, at a

minimum

, the following information : (1) a concise narrative of the individual’s

conduct ; (2) w hether the victim was a minor ; (3) t he manner of weapon or

physical force used or threatened ; (4) i f the offense involved unauthorized

entry into a room or vehicle occupied by the victim ; (5) i f the offense was part

of a course or pattern of conduct involving multiple incidents or victims ; and

(6) p revious instances in which the individual was determined guilty of an

offense subject to this subchapter or of a crime of violence as defined in

section 97 14(g) (relating to sentences for second and subsequent offenses).

Id

. § 9799.24(d), (d.1).

Given th ese statutory mandate s , it is clear that the legislature intended

that the SOAB member consider more than the limited facts included in a plea

colloquy, a nd that the SOAB member undertake to review and consider the

information contained in records provided by s tate, county and local agencies,J

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- 21

-

offices and entities in this Commonwealth when making an SVP assessment

and preparing a statutorily compliant written report

. To be sure, it would be

the rare occasion on which the SOAB member would be able to fulfill its

sta tu tor y obligations if its SVP assessments and written reports were limited

to facts contained in a plea colloquy

, admitted into evidence, or determined

by the trier of fact. 13

Moreover, i n the context of an SVP hearing, the judge is not tasked with

evaluating the veracity of the facts underlying the expert ’ s testimony. See

Prendes

, 97 A.3d 360 (explaining that an SVP hearing is not a trial and the

primary purpose of the SVP registration requirements is to protect the public,

not to punish the offender). Indeed, th e facts presented at an SVP hearing

are not being offered for the truth of the matter asserted , as would be the

case in a true hearsay scenario

. Instead, they constitute information , gleaned

from records which are reasonably relied on in SOAB evaluations, that is

presented to the trial court solely to supply the basis for the expert ’ s opinion

in accordance with our Rules of Evidence

. See Prendes , 97 A.3d at 362 ; see

_________________ __________ ______ ____ _______

13 Despite established jurisprudence on this point, the learned dissent conflates an SVP hearing with a prel iminary hearing with respect to the consideration of hearsay evidence. See Dissenting Opinion, at 9 n.2 ( relying

on Commonwealth v. McClelland , 233 A.3d 717, 736 (Pa. 2020) (holding that a defendant’s due process rights are violated at a preliminary heari ng when charges are held over based solely on hearsay) ) . As explained above, an SVP assessment is not a trial or a separate criminal proceeding that subjects the defendant to additional punishment. Prendes

, 97 A.3d at 35 8;

see also Killinger

, 888 A.2d at 600.J

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-

also P a .R.E. 703, 705

. Accordingly, t he otherwise inadmissible facts

reasonably relied upon by Dr. Muscari to explain the basis of her opinion

,

including the allegation s of sexual abuse asserted by P.M., do not constitute

substantive evidence. See Prendes

, 97 A.3d at 361 ; see also Pa.R.E. 703,

705 and C m t.

On the other hand

, an expert’s opinion which is rendered to a reasonable

degree of professional certainty is

, itself

, substantive evidence. See

Commonwealth v. Fuentes

, 991 A.2d 935, 944

- 45 (Pa. Super. 2010) (en

banc ) (concluding that

, because the expert’s report and testimony support ed

the trial court ’ s finding that a ppellant was an SVP, there was no basis for

granting sufficiency relief )

. Thus, in this case, Dr. Muscari’s opinion that

Aumick is an SVP, which was rendered to a reasonable degree of professional

certainty based on the materials she had reviewed

, constituted sufficient

evidence for the trial court to mak e its SVP determination

. 14

Aumick had the opportunity to defend himself against D r. Muscari’s

opinion by present ing his own defense expert at the SVP hearing and by cross

examin ing Dr. Muscari to test the reliability and credibility of her opinion

.

_________________ __________ ______ ____ _______

14 To the extent that Aumick attempts to challenge the admissibility of D r. Muscari’s expert report, th at challenge is waived , as he did not object to the

admission of her expert report during the SVP hearing. See Commonwealth

v. B aker , 24 A.3d 1006, 1034 (Pa. Super. 2011) (holding that “[h]aving failed

to raise an objection before the trial court, B aker cannot now complain that the trial court erred in admitting the [SOAB member’s expert report at the SVP hearing] . . ..”).J

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- 23

-

Aumick did not retain a defense expert or present any evidence at the SVP

hearing

. Although d efense counsel subjected Dr. Muscari to questioning

regarding the materials she relied upon in making her assessment

, such

efforts went to the weight rather than the sufficiency of the Commonwealth ’ s

case

. See Feucht

, 955 A.2d at 382

. 15 Accordingly, they do not affect our

sufficiency analysis.

Viewing the record evidence in the light most favorable to the

Commonwealth, we conclude that the record substantiates the trial court ’ s

determination that the Commonwealth presented clear and convincing

evidence that Aumick met the statutory criteria to be classified as an SVP

under revised Subchapter H of SORNA II

. Dr. Muscari testified to a reasonable

degree of professional certainty that Aumick suffers from a pedophilic

disorder

, is following a sexually deviant pattern, and is an individual who has

a mental abnormality or personality disorder that makes him likely to engage

in predatory sexually violent offenses

. See N.T., 7/13/20 , a t 9, 12

- 1 8

.

Aumick essentially asks this Court to reweigh the evidence and find in his

favor, which we cannot do. See Fuentes , 9 91 A.2d at 944

- 45 (holding that

_________________ __________ ______ ____ _______

15 Aumick failed to raise a challenge to the weight of the evidence in the lower

cou rt . Thus, he failed to preserve a weight challenge for our review. See

Pa.R.Crim.P. 607 (providing that a challenge to the weight of the evidence must be preserved in a post

- sentence motion

, prior to sentencing orally

, or through a written motion ); see also Pa.R.A.P. 302(a) (providing that issues

not raised in the lower court are waived and cannot be raised for the first time on appeal)

.J

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appellant’s challenge to the information considered by the SOAB expert in

making the SVP assessment went to the w eight rather than the sufficiency of

the evidence ). Accordingly, we afford him no relief.

Judgment of sent ence affirmed.

President Judge P anella, Judge s Olson , Kunselman, Nichols, Murray

,

McLaughlin and McCaffery join this opinion.

Judge Dubow files a dissenting opinion.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/12/2023